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Managing the Modern Workplace
V&E International Labor & Employment Resources

"Document, Document, Document" Is Only Half the Battle

As someone who has tried dozens of employment trials — including a very recent one in which a jury found for my client — I can attest to the importance of having good documentation that corroborates the employer’s conversations with employees, especially when the employee subsequently disputes what was said. In my recent trial, for example, we were able to admit dozens of investigation reports that were made close to the time of the events and contradicted the plaintiff’s version of events. The jury was allowed to bring these documents back to the jury room with them and review them in deliberations — a very powerful tool for a jury that is otherwise relying on its collective memory in discussing evidence. Unfortunately, trial lawyers sometimes forget to tell their clients what they need to do in order to ensure that their valuable documentation will be admissible at trial.

Consider the human resources manager who interviews multiple witnesses to an alleged harassment claim. Like many interviewers, the HR manager takes sketchy notes, in which she writes down the names of witnesses and provides a brief chronology of the allegations. The only real details in her notes are specific statements that the complaining witnesses allege that the harasser used in the complainant’s presence. Months later, after an EEOC charge has been filed, the HR manager takes her preliminary notes and puts together a cogent written narrative which she then provides to the Company’s lawyer. Unfortunately, the cleaned up documentation that was put together months after the fact is unlikely to be admissible.

So what should HR supervisors do to prevent this from happening? While there is nothing wrong with taking “rough notes” when initially investigating a complaint — in fact, many interviewers find that it is easier to listen to a witness and assess his or her credibility if the interviewer is not preoccupied with making a word-for-word transcription — a good investigator should always make it her regular practice to prepare a detailed record of the interview as soon as possible after the interview, and not wait for months to pass.

Additionally, in order for investigation notes to be admissible, your lawyer will need to be able to show that it was a regular practice of the human resources manager to prepare reports of such investigations. In other words, this was not a one-time situation. When the former employee’s lawyer challenged the investigation notes that my HR manager prepared in this case, I was able to show the court that the human resources manager had boxes of similar reports that he had prepared. In other words, this was a typical business record.

Documentation is important, but make sure that your documentation is such that it will be useable by your lawyer if you ever end up in trial.

This communication is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice. 

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Author

Christopher V. Bacon

Christopher V. Bacon Counsel